Former APS superintendent Beverly Hall listens as pleas are entered in court Monday. Judge Jerry Baxter ordered all the remaining 23 defendants in the Atlanta Public Schools test-cheating case to appear in court Monday, January 6, 2014 and declare whether they will enter negotiated pleas or proceed toward trial. Lawyers involved in the case say six of the remaining defendants have decided to enter guilty pleas. If that comes to pass, it means the case will be effectively cut in half since 35 former educators were indicted earlier in 2013. (One of the 35 is now deceased.) KENT D. JOHNSON / KDJOHNSON@AJC.COM
Photo: KENT D. JOHNSON / AJC
Photo: KENT D. JOHNSON / AJC

Cheating case built on confessions

Twenty-one guilty pleas. Twenty-one cooperating witnesses. Twenty-one people pointing fingers from the witness stand.

Plea agreements obtained in recent weeks in the Atlanta Public Schools test-cheating case have given prosecutors an arsenal of educators to call upon in a large, monthslong trial set to begin in late April.

Yet none of them is expected to provide a “smoking gun” moment and testify that the school system’s top administrators told them to cheat.

Former Superintendent Beverly Hall and three of her top lieutenants — regional directors Michael Pitts, Tamara Cotman and Sharon Davis-Williams — are among the 13 remaining defendants in the case. All are charged in a racketeering indictment that accuses them of conspiring to change students’ answers on federally mandated curriculum tests to meet academic standards, earn bonus pay and keep their jobs.

Georgia’s law against racketeering and conspiracy, known as RICO, is modeled on the federal law that was originally passed with the intent of prosecuting criminal organizations like the Mafia. A RICO conviction calls for a sentence of up to 20 years in prison.

During recent plea hearings, one educator after another said superiors handed down orders saying test-score targets had to be reached, even though it was common knowledge this could not be accomplished without some kind of outside intervention like cheating.

Educators also said they were were told by higher-ups they could lose their jobs if their students’ test scores fell short. And they noted Hall issued an edict that came to be known as her mantra: “There would be no excuses.”

Tim Saviello, a law professor at John Marshall Law School, said it will not be easy for prosecutors to convince jurors to convict those at the top rungs of the APS hierarchy. But prosecutors have witnesses who will testify about the pressures placed on them to meet targets.

“Although nobody explicitly said they were told to cheat, the environment made it explicit,” Saviello said. “Is that enough to prove their case beyond a reasonable doubt? I don’t know. But the prosecution is a lot closer to that now by having all these people who’ll come in and describe the environment they faced.”

Prosecutors have been building a case that administrators in the school system should have known that outstanding results on standardized tests were too good to be true.

“RICO was designed to get at leaders who never get their hands dirty,” said Jeffrey Grell, a Minneapolis attorney and RICO expert who teaches at the University of Minnesota Law School. “If they promoted it and encouraged it, either explicitly or implicitly, that could be enough to get past a jury.”

The numerous plea agreements reached with the cooperating witnesses are replete with statements that say Hall and her top lieutenants knew or should have known cheating was going on. Former Parks Middle School Principal Christopher Waller, for example, is expected to say he believed Hall knew the only way to achieve her “unrealistic” goals was to cheat, and she never questioned “absurd” test score jumps.

But such testimony should be inadmissible at trial, said Atlanta criminal defense attorney Paul Kish, who is not involved in the case.

“That’s pure opinion,” he said. “These witnesses should only be able to testify about facts. Generally, opinion testimony is reserved for witnesses considered to be experts in their fields.”

Hall’s lead attorney, Richard Deane, previously called the charges against the former superintendent excessive and unfounded. There is no factual basis to support allegations that Hall directed people to cheat on tests, he said. Last week, Deane declined further comment.

Attorneys for Hall’s close advisers — Pitts, Cotman and Davis-Williams — didn’t return phone calls seeking comment.

A grueling trial lasting several months likely will be held in the Fulton County Courthouse’s largest courtroom, where defense teams will sit bunched together in rows of narrow tables. Last year, Superior Court Judge Jerry Baxter had suggested that the trial would have to be held in an abandoned grocery store, but he now wants to fit everyone into existing facilities.

“We’re just going to be all in that room down there, and we’ll keep on till it’s over with,” Baxter said during a recent hearing.

For the first time since being assigned the massive case, Baxter recently indicated he would consider breaking the trial into two parts, separating lower-ranking educators from administrators. But Deputy District Attorney Fani Willis objected to the idea, saying she didn’t want to repeat the same trial twice.

Besides APS’ top managers, the other remaining defendants are a former principal, a former assistant principal, two former testing coordinators and five former teachers.

Decatur attorney Bob Rubin, who represents former Dobbs Elementary Principal Dana Evans, said he expects to file a motion asking Baxter to break up the defendants to allow for separate trials.

“We think it makes sense,” Rubin said. “It’s more efficient to the parties involved and fairer to some of the defendants who’d have to sit through weeks and weeks of testimony that’d have nothing to do with them.”

And it’s possible not all of the remaining 13 defendants will go to trial, say lawyers who closely follow the case. Plea deals in criminal cases often come at the last minute.

Even though Baxter’s deadline for negotiated pleas was Feb. 21, the judge still could accept future plea agreements — even though these defendants would face a greater risk of punishment.

In the prior pleas, Fulton prosecutors negotiated agreements that allowed the defendants to plead guilty to reduced charges and receive probation. Baxter signed off on all the pleas, but if he had not agreed with the proposed sentence and believed harsher punishment was called for, defendants could have withdrawn their guilty pleas.

However, if some of the remaining 13 defendants wish to enter non-negotiated pleas, they cannot withdraw the pleas if they don’t like Baxter’s sentence.

The remaining educators will be taking an even greater risk going to trial. On numerous occasions, Baxter has made it clear that those who are convicted at trial face “serious consequences.”

Even so, some defendants appear determined to go to trial.

“When people are committed to facing justice, they’re willing to face the risk,” said Angela Y. Johnson, an attorney for former Dunbar Elementary teacher Pamela Cleveland. “We’re preparing for trial, but if we get to a point where there’s a favorable negotiation, we’re always open to that.”

From the start, Fulton County District Attorney Paul Howard has acknowledged that there wasn’t an “open agreement” among the defendants to cheat. Instead, prosecutors have alleged that top administrators pressured school-level educators to the point where there was no other option but to cheat, and then tried to cover it up through lies, intimidation and the destruction and withholding of documents.

“Because there’s a single-minded purpose, and that purpose is to cheat to manipulate the grades, what we are alleging is that (Hall) was a full participant in that conspiracy,” Howard said March 29, 2013, the day a grand jury indicted the former Atlanta educators. “What we are saying is that, without her, this conspiracy could not have taken place.”

Since then, with each defendant’s guilty plea, the prosecution has obtained testimony from people on the inside who are willing to blame their bosses for participating in cheating or trying to cover it up.

The highest-ranking defendant to plead guilty, former Human Resources Director Millicent Few, could be a key witness against Hall. According to her plea agreement, she is expected to testify, for example, that Hall was aware of allegations about cheating and ordered employees to destroy an investigatory report about cheating at Deerwood Academy.

But, during the trial, the remaining defendants likely will try to discredit witnesses who have agreed to cooperate in exchange for reduced sentences, said Grell, the RICO expert.

“A defense attorney can say, ‘All these people, they can’t be believed because their testimony is bought and paid for,’” Grell said.

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